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Challenges Before Lamorde: Refocusing The War Against Corruption
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The removal of Farida Waziri as the head of Economic and Financial Crimes Commission creates yet another opportunity for Nigeria to refocus on its fight to eradicate or reduce corruption to the barest minimum. As a caution, though, it must be pointed out that the installation of Ibrahim Lamode as the new head, albeit only in an acting capacity, tends to dampen any hope of immediate progress. Not only can one credibly argue that Lamode does
not and cannot bring any fresh ideas to the fight against corruption in Nigeria. He has been in this position before. He has been controversial and even a divisive figure. While he may be seen as a steady, modest hand, he generally lacks initiative or leadership in a moment of change like now.
Also, if anyone is to give Lamode credit for anything in the EFCC, he must accept blame for the high level of indiscipline and other shortcomings in the operations department of the EFCC, which he has headed exclusively since the inception of the commission. While the problems of the EFCC seem to have been located in the corruption within its leadership, it is important to recognize the many other problems that are located elsewhere in the organization. Indeed, it may be arguable that the greatest concern about EFCC is not the internal corruption in the agency, as bad as that may be.
I would readily contend that the biggest source of concern about the commission is located in the area of impact of the work of the commission on human rights in Nigeria.
Without any doubts, the EFCC is the biggest threat to human rights in Nigeria. And, in an ironical view of things, watched closely, the activities of the EFCC posed dangers to human rights more than any other law enforcement agency even during military rule. And this is not withstanding the popular euphoria with which most people have received the EFCC. Despite the popular indulgent attitude toward the EFCC, its future and ultimate relevance to Nigeria will depend on how it is measured relative to the degree to which its operations are to be consistent with the basic rights of the citizens.
While mindful of the need to remain hopeful, my close and sustained analysis of the EFCC and trends reveal a rather disturbing conclusion. First, the performance of the EFCC has strangely forced a choice between fighting corruption and observing our constitutional liberties and due process of law. There is no way for our society to settle for such a choice. The two ought to be all inclusive. To have to choose between the two, as if we could not have both, leads us to doom.
Any reform of the EFCC that does not address this problem will fail outright. With Lamode's responsibility for the creation of the present state of right abuses and utter indiscipline in EFCC, he is definitely not going to be any better than the worst we have had so far, which was Farida Waziri.
It will be proper to illustrate this point with specific examples and incidents. Only yesterday, I sent a petition to the Attorney-General of Nigeria highlighting a case where the operatives of the EFCC assaulted a detainee in a bid to coerce a testimony from him. I also pointed out how an EFCC doctor conspired to make false medical report to cover up the incident. The same day that I wrote my report to the Attorney-General, the same set of EFCC operatives travelled to Sapele in Delta State supposedly to search the house of the suspect. Upon arriving at the suspect's house (with suspect staying behind in the EFCC cell in Lagos due to the injuries he sustained from beatings from the operatives) without any provocation one of the operatives slapped the younger sister of the suspect. The slap was so forceful it knocked the 20-year old girl to the floor. That girl was admitted to the hospital as a result.
Also, on my case: on February 25, 2011. Lamode concocted a lie against me and used it as a pretext to send a team of operatives to torture me in the EFCC cell. The most troubling thing was not just how I was treated, but the fact that Lamode had to deliberately lie to his subordinates to cover up his eal motive for attacking me. Similarly, while still in custody, Lamode last week ordered that I be placed in solitary confinement simply because I dared to write my comments on Mrs. Waziri's visit to the cell. Lamode has applied force and deception where a more decent approach would have been more consistent with my rights under the law.
Many, many more examples of abuse exist across the operational units of the EFCC. Witnesses are constantly coerced. Suspects are threatened. Evidence is routinely tampered with. People are constantly framed up and set up for offences they did not commit. All manner of abuse occur so regularly here. Court orders are routinely flouted.
With this record at Lamode's doorstep, one must safely assume that Lamode is not the man. Any period he spends as the head of the EFCC is a double period of setback for the commission. Lamode is a giant step backward. It is only a matter of short time before the skeletons of the victims of abuse on his watch will rise from their graves and commence a far-reaching lawsuit against Lamode in his personal capacity. Such will be a major distraction for him.
I constantly refer to the fact that I have studied the EFCC more closely and more intimately than any other outsider. The organization's greatest challenges are to overcome certain institutional and operational huddles that it faces. For instance, we have to re-examine the process by which the staff of the agency are selected. The wholesale incorporation of police officers at top levels clearly affected the agency. Rather than creating a new force, it led to an adverse selection problem. The worst elements in the Nigerian police infiltrated the organization carrying with them the same mindset for which the police was criticized.
Also, the organization is not diversified in any way that could have reflected the diversity in the Nigerian society given the amount of power and influence the organization has wielded. Indeed, on any typical day, the EFCC staff conduct business in Hausa language. And given the poor record of discipline, the staff were not trained to appreciate the sensitivity involved when a non-Hausa speaking suspect sits and watches as his case is being processed in Hausa language. I must confirm that the predominance of the Hausa/Fulani ethnicity does not necessarily translate into better treatment of Hausa/Fulani suspects. The cases of Auwal Danjuma and Hamisu Umar, in which the two men have been tormented by one Bamaga Bello, illustrate this point. Also the case of 3 boys from Bauchi who were detained for a month and prosecuted for a case of N 7,500 buttresses this point. Yet, this does not fully cution the the impact of having all those that control your liberty speaking in a language you do not understand.
As a lawyer, my strongest interest has been in the area of the level of observance of due process. At present, it is virtually zero. Indeed worse than zero, EFCC officials actually subvert due process. What I mean by this is with reference to situations where the officials know what to do, understand the need to do it, but desire not to do it and actually go out their ways to frustrate the doing of such things. For instance, the EFCC officials understand that the witness or suspect must make his statement with freewill and without coercion or threats of coercion. Yet the EFCC officials do everything they can to ensure that a suspect is not allowed to make his own statements. Instead, the suspect is forced to give a statement that will incriminate him. They will deny the suspect all access to his lawyer until he had given an incriminating statement. He is not allowed to call his wife until he has confessed. He is told that he would never be allowed out of detention until he has confessed. In many situations, coercion is more overt and the officials resort to brute force. In all this, there is no accountability.
Again, I use my case and my experience as illustration. For the entire period of my detention, EFCC officials denied me telephone access to my family, my law office staff, my clients and the courts in which I had cases pending in the United States. There was no legitimate purpose whatsoever for this. The aim was simply to punish me and to break me into submission. They deliberately caused me to suffer losses in millions and they needlessly destroyed me economically. All these happened under Lamode's direction and leadership. If anyone were to ask Lamode or his lietnants like Abdul Suleiman why they did that to me, they will never have an answer that would make sense, an answer that would show sense or set out a principle that could be repeated in comparable situations. Their thoughts and calculations in my case cannot rise beyond the thoughts and calculations of motor park touts or a gang of kidnappers.
Now what have the EFCC officials achieved in the way they handled me? How has Nigeria benefited from their actions in my case? They have destroyed a law firm that served Nigeria for ten years. They have caused me to lose over 5 million dollars and counting. They have damaged my health. They have endangered my children's life and well-being. And they have never gotten beyond mere allegations which are totally improbable allegations. Yet, we can tell how much Nigeria has lost from their actions in my case. With any degree of objectivity, anybody who sees how EFCC officials behaved in my case must wonder what level of involvement Ibrahim Lamode had in it. There is no way my case would not reflect on Lamode's competence and fitness for leadership in any field of endeavor.
Moving beyond my case, one can observe similar absurdities in some other cases. I have petitioned the Attorney-General of Nigeria on many of them. Also, I have petitioned the National Assembly on some of them. It must be noted parenthetically that my ability to communicate like this from detention involves risks and smuggling of information and notes through all improbable channels. In a free setting, my thoughts on these matters are definitely more profound and my illustrations more vivid and compelling. So, readers must bear in mind the constraints that I face at the moment.
Looking at other areas of operational lapses, we can point at the long and unlawful detentions of suspects. EFCC uses its own detention orders and orders obtained from courts that have no jurisdiction over the cases and secret orders to justify detentions. Everybody with common sense would have known that the situation is a keg of gunpowder. The explosion will occur when 200 to 300 victims of these detentions match to the courts to seek redress. That moment is close by.
Also, EFCC uses malicious and vindictive prosecutions to suppress opposition. Almost every person who sues EFCC for fundamental rights enforcement gets charged to court within weeks after that. The pattern is so compelling. There is also the practice of closing of suspect's bank accounts regardless of how irrelevant that may be to the offense alleged. In most cases, the only reason for such measures is to break the suspect and his family. Also, there is the search and seizure practice whereby EFCC officials issue to themselves a warrant to search the house and office of the suspect however remotely necessary such a search is to the offense alleged. EFCC officials assumed that merely receiving a complaint against a person justifies an invasion of his house and business and instilling of shock and awe on his family members and employees. We know that no law enforcement in the world taught them to do that. And it al happened under Lamode's watch. And come to think of the absurdities in those searches, in one of the cases recently, an EFCC operative who came with a suspect to search his house picked up a bottle of cologne, held it in his hand and said to another operative with him, "this was the cologne I used when I was in secondary school". The suspect is a millionaire businessman. The operative is in his 40s. the cologne is question has not been in distribution longer than 5 years. It was clear that he operative made that remark just to humiliate the suspect in the presence of his wife and children. And all that happened on Lamode's watch. Lamode claims to have received trainings in various international centers. He must have seen Nigerians as animals for him to deviate so blatantly from the course of human decency. Again, his fitness for leadership is called into question.
I can go on and on to point out the numerous shortcomings of EFCC and the areas where the agency has failed woefully. I have not bothered to mention the intractable corruption in EFCC. Every official in EFCC with the exception of just a few junior officers is corrupt. Everybody who has come across EFCC hates it. The relatives and friends of everybody who have come across EFCC hate it. Stupidly enough, the officials of EFCC believe there is no problem with that. In their dull and unschooled minds, they think that criminal suspects and even convicts must necessarily hate those in law enforcement. If they had cared to look at parallels elsewhere, they might have learned that in a proper, fair and just system of law enforcement, even the convicts accept the fairness of the system that put them behind bars. As a lawyer that has been involved with the American Criminal Justice system, I have known that many of the convicts accept that they screwed up. Here, those who pass through the EFCC can point credibly to the bribe they did not pay and a big man they did not please, which landed them in detention for cases that eventually got dismissed because there was no case.
Failure to appreciate the long effect of the displeasure of the public towards the EFCC is actually astonishing and it reflects the degree of oblivion or insensitivity on the part of the authorities and the government as a whole. The fact, however, is that with the continuing swell of public opinion against the agency, it is only a matter of time before it loses all possibility of survival. Indeed, even at present, there should be a noticeable effect of the loss of credibility by the EFCC. The huge amount of budgetary allocation to the office of the EFCC spokesperson and the amounts that go into media propaganda cannot be overlooked. Indeed, a newspaper recently referred to this trend sarcastically as a situation where the publicity department had become more resourceful that the operations department. Why the diversion of attention from operations to publicity? The answer is simply that EFCC increasingly had cause to repair a severely damaged image, and it chooses to do this by way of propaganda rather than good work. It is already a catch 22 for the EFCC. They seem to have gone too far in one wrong direction that they may never return to the right path without massive external intervention. No amount of propaganda and lies will regain the lost grounds. Now, Nigerians are waking up to realize that if they suddenly notice that their family member is missing, they should start the search with a visit to the nearest EFCC detention center. It is now growing into a regime of disappearance by the EFCC. Everybody knows that it takes only a complaint plus a few thousand nairas in bribe for the EFCC to arrest someone and detain such a person for months in most cases, and it takes a counter bribe for the detainee to be set free. All manner of complaint, however ridiculous, will suffice for EFCC.
With such massive erosion of public confidence, no amount of propaganda can save the organization. The only way forward would require not just the removal of the entire leader corp of the organization, but also an honest investigation of the past leaders of the agency with readiness to indict and prosecute them where misconduct and crimes have been facially established. Merely removing Waziri and installing Lamode is too cosmetic to make any change.
What level of change or intervention will suffice to salvage the EFCC or refocus the war against corruption? At the least, the entire top officials of the commission should be removed. The operational department should be revamped with an overhaul of the personnel in that department. Also, nearly all the staff in the legal department. Also, nearly all the staff in the legal department should be removed. First they lack basic competence and skills even to tell the difference between a civil case nd a criminal case. These lawyers are fumbling everyday in various courts in Nigeria. In addition to the miserable performance of the EFCC lawyer, they openly demand bribes from the suspects. In my case their lawyers have demanded bribe in order to cooperate with my bail applications. For instance, when I refused to pay bribe for their not opposing my bail in the first case they filed against me, they decided to oppose my release in the second case and to oppose my bail in the third one. This pattern of behavior is remarkable. The EFCC lawyers did not oppose my bail in a case of 1.5 million dollars. But they are opposing it in $94,000 case. As a result of my continued refusal to bribe the lawyers, I had to stay in pretrial detention for more than one month.
In view of the fact that EFCC has made a claim to probity and the fight against corruption, Jonathan's administration must be prepared to make a clean sweep of any reform measure. No stone should be left unturned and no one found wanting should be spared. Nothing short of a clean sweep will be capable of restoring the trust and confidence of the people.
There could be additional benefit to the country if the government could be seen to be serious with the reform of the EFCC. At this moment an intelligent assessment reveals that there are at least 1000 people with legitimate grievances against the EFCC.
These grievances will burst into lawsuits for right abuses and abuse of process in various law courts, including foreign courts. These suits would be seeking in total billions of naira from the coffers of the Nigerian government. They will overwhelm our courts for some time to come. They will massively distract the new management of the reformed EFCC as they will have to divert precious resources into defending such suits. The Government could mitigate such crisis by coming out to show by way of reform that it never condoned the abuses by EFCC staff. Indeed, the office of the Attorney General could commence an investigation in EFCC abuses. Such sincere effort will likely assuage the anger and frustration of many victims of the EFCC, and minimize the sense of outrage they feel towards the EFCC and the government
Emeka Ugwuonye, Esquire
NOTE:
As of the moment of writing this piece, I have remained in detention custody for exactly one month, half of which has been spent in solitary confinement. I have been denied access to phone calls, to visitors, to newspapers and other media sources of news, and to my lawyers. Also, I have been denied access to medical treatment for a head injury and other medical needs. I remain exposed to high temperature and humidity conditions and mosquito bites, all as a method of punishment.
BY Emeka Ugwuonye
November 26, 2011
EFCC Cell
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